A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Saturday, 26 February 2011

Gaddafi and the Special Court for Sierra Leone: Did UK let Gaddafi Off the Hook?

David Crane is in the centre. From left, Robert Petit, Steve Rapp, David, Richard Goldstone and Andrew Cayley. I took the photo last August at the annual Chautauqua meeting of international prosecutors, past and present. It is taken outside the Robert Jackson Centre.

Yesterday, a curious footnote to the work of the Special Court for Sierra Leone appeared inThe Times, which I was reading by chance (it is not my favourite British paper, as readers of the blog will be aware) on the plane to Belarus, where I am delivering a lecture on the death penalty.The story is entitled 'Prosecutor Reveals How Britain let Faddafi Off'. It is written by Soraya Kishtwari and is on p. 11 of yesterday's paper. It begins

Britain put pressure on an international court not to indict Colonel Gaddafi for war crimes despite evidence that implicated him in the maiming of more than one million people in Sierra Leone, the Chief Prosecutor on the case has claimed.The United Nations Security Council, which counts Britain among its permanent members, had evidence linking Colonel Gaddafi to war crimes in Sierra Leone as early as 2003.Prosecutors named Colonel Gaddafi in the indictment of Charles Taylor, the former President of Liberia who is currently on trial for alleged war crimes. However, due to resistance from UN member states, including Britain, the decision was made not to indict the Libyan leader.Professor David Crane, of Syracuse University, who was the Chief Prosecutor at the Special Court of Sierra Leone between 2002-05, said: 'It was my political sense, dealing with senior leadership in the United Kingdom, United States, Canada, United nations, and the Netherlands, that this would not be welcome,' he said. 'This [Colonel Gaddafi's involvement]is not speculation on my part. We named and shamed him in the actual indictment.

Indicting Gaddafi would have been the 'death knell' for the courts as the countries objecting would have pulled funding, Professor Carne added. Asked why he believed there was opposition from the international community to act on the evidence he had uncovered, he said: 'Welcome to the world of oil.'
Professor Crane said Colonel Gaddafi was instrumental in planning the conflict in Sierra Leone, which went on for ten years from 1991 and resulted in the deaths of 50,000 civilians and left hundreds of thousands displaced.
His view is corroborated by his colleague at the time. Sir Desmond de Silva, QC, one of Britain's leading barristers and an authority on human rights confirmed that Colonel Gaddafi's primary role in the war had been that of trainer and financier.
Jack Straw, who was Foreign Secretary between 2001 and 2006, expressed surprise at the suggestion that the British Government had sought to influence the investigations. he said he had 'absolutely no recollection of knowing any involvement by the UK in putting pressure of any kind on anyone'.In a statement, the Foreign office said: 'The UK is committed to ensuring there is no impunity for those alleged to have committed the most serious crimes of international concern.'

This is a rather stunning bit of news. If I were Charles Taylor's counsel, I'd be working on a new motion. The suggestion that the prosecutions at the Special Court of Sierra Leone were influenced politically, through threats to withdraw funding, is quite damning. I have always believed that the funding situation of the Court was totally unacceptable, and inconsistent with the independence and impartiality required of an international court (or any court). In effect, the Court has depended upon voluntary contributions from governments rather than relying upon the general budget of the UN, as is the case with the Yugoslavia and Rwanda tribunals.

The UN Secretary General tried to secure up-front funding from the backers of the Court, but they would not provide this adequately. The reason was obvious. They wanted to keep the Court on a drip feed so that they could influence its activities The suggestion that indictments are used to 'name and shame' individuals who are not actually prosecuted is an interesting one, about which readers of the blog may have some thoughts.

I'm all in favour of charging Gaddafi (before the International Criminal Court) for recent atrocities in Libya. But for the record, I am not sure there is much of a case against him with regard to Sierra Leone. I served as one of the three international members on the Sierra Leone Truth and Reconciliation Commission, which worked during the same period that David Crane was Prosecutor of the Court. We did not find much evidence of Libyan responsibility, and nothing specific against Gaddafi. Our report indicated that young Sierra Leoneans had gone to Libya in the late 1980s for training. My impression was that this was more like summer camp for revolutionaries. During the 1990s, there was some evidence of financial support for the Revolutionary United Front from the Libyans, but we are talking about modest sums. For example, the Commission found a document whereby the RUF thanked the Libyans for a gift of $500,000. Small beer, really. And there were some reports of arms being transshipped through Libya. Of course, there is little doubt that Gaddafi supported the RUF. But to get a conviction at the Court, it would have to be shown that he knowingly participated in crimes against humanity or war crimes, and we found no evidence of that.

Here are the relevant excerpts from the Report of the TRC. As you can see, they don't add up to much against Gaddafi:

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Volume 3A

… 23. In this climate, the first connections on an institutional level between ‘revolutionaries’ in Sierra Leone and representatives of the Government of Libya were established. The earliest channels to be carved out were for FBC students, including two successive student Presidents, to attend conferences inTripoliat which Pan-African ideals and the socialist philosophies of the Green Book were discussed. Upon the expulsion of 41 students – including the incumbent student President Alie Kabba – and three of their lecturers fromFourahBayCollegein March 1985, however, the stakes were raised to the point where the youthful revolutionaries felt that they had nothing left to lose. 24. It appears that upon one visit toTripoli in the wake of these expulsions, a delegation led by Alie Kabba petitioned successfully for what had previously been regarded as a last resort – provisions for commando training to be made for Sierra Leonean revolutionaries. The acceptance of such a proposal by Libya is probably best understood in the first instance as an indication of that state’s broader and longer-term, albeit complementary, objective of establishing an African-wide ‘Green Army’ to take on the perceived global hegemony of the United States and in support of revolutionary movements globally. There is no concrete evidence in the Commission’s findings that Libyan President Colonel Muammar Ghaddafi harboured any inherent will to thrust war uponSierra Leone in particular, although the regime of Joseph Saidu Momoh was perceived as pro-Western and its overthrow would certainly have been welcomed byLibya as a desirable corollary benefit. … 35. In the process of mobilising resources, both human and financial,Taylor established relationships with supportive foreign Governments and their ‘revolutionary-minded’ leaders: firstBurkina Faso and its President Blaise Campoare; thenLibya and its President (Colonel) Muammar Ghaddafi. The latter link, as intimated in the foregoing analysis, was to prove especially formative forTaylor as he developed an “ideological” and strategic basis on which to prosecute his aggressive agenda.

Vol. 3B

External Actors in the Pre-Conflict Period up to 1991 and in Phase I of the Conflict: March 1991-1993

Libya: preparing revolutionaries in pursuit of ideology

5. The involvement of external actors inSierra Leone’s conflict can be traced to the 1970s when attempts were made by different groups of Sierra Leoneans to undo Siaka Steven’s decade-old hegemonic grip on the country. These efforts included the nation-wide student demonstrations of 1977, which largely failed in the face of a violent clampdown by state security forces. Since the demonstrations did not yield a regime change, the students resorted to political sensitisation on college campuses and among youths in greaterFreetown. Initially the sensitisation took the form of study groups. On the Fourah Bay College (FBC) campus of theUniversity ofSierra Leone, a number of study groups sprang up. Prominent among these was the Green Book Study Group. 6. The Green Book contains the political philosophy of the Libyan President, Colonel Muammar Ghaddafi, which is known as the Third Universal Theory. It advocates the creation of a Jamahiriya - a peoples’ state. Ghaddafi claimed that the Third Universal Theory is instrumental to the emancipation of the human race. The spread of Ghaddafi’s political philosophy became a key foreign policy objective of the Libyan state. Even before he began supporting revolutionary movements in different parts of the world, Ghaddafi offered diplomatic relations and foreign aid in furtherance of his aim of spreading his political philosophy.Libya gave financial assistance to Sierra Leonean Muslims in the late 1970s in order to perform the annual hajj pilgrimage toMecca. The Libyan government also provided funds to assist theSierra Leone government to host the Organisation of African Unity (OAU) summit in 1980. 7. As part of a wide range of foreign policy tools to influence events outsideLibya, Ghaddafi provided a safe haven and weapons training for individuals who wished to instigate revolutionary struggle in their own countries. These were people who had been branded as terrorists, dissidents and insurgents4 by their own governments but who (in many cases) were engaged in resistance to overthrow dictatorial and colonial regimes. Ghaddafi also created front organisations for their operations in neighbouring states. 8. A number of formal bodies were responsible for the execution ofLibya’s foreign policy. These included the Foreign Liaison Secretariat, the Secretariat for External Security, the Divisions of General and Military Intelligence, the Libyan Special Security Forces, and the Secretariat of Justice. 9. As part ofLibya’s foreign policy strategy, Libyan Peoples’ Bureaus and Revolutionary Committees / Councils facilitated the setting up of revolutionary movements in a number of countries. In 1985, a renewed drive was undertaken to extendLibya’s influence in the third world.7 10. Members of the Green Book Study Group at FBC had established contacts with Libyan authorities in the early 1980s. In 1985 three lecturers and 41 students were expelled from FBC following allegedly riotous conduct by students after a convocation ceremony, on and off the campus inFreetown. Alie Kabbah, the student union leader, along with some of the other students who were expelled, travelled toGhana towards the end of 1985. The Commission received a variety of accounts of the steps that occurred next and the following descriptions can reflect only the experiences and perspectives of those cited. 11. The then President of Ghana, Flight Lieutenant John Jerry Rawlings, and his government had an avowed revolutionary posture. He was perceived as a proponent of pan-Africanism. The majority of the radical students who were expelled from FBC were members of the Pan-African Union organization (PANAFU). Upon arrival inAccra, some of the students were received by the Chief of the Libyan Peoples’ Bureau inGhana. Some of the students gained admission into theUniversity ofGhanaat Legon to complete their studies. The Libyan government paid their fees and their up-keep on scholarships. While inGhana, the student radicals were invited to attend seminars and conferences inLibya. Their trips were funded by the Revolutionary Council of Libya. 12. Alie Kabbah and his colleagues inGhana subsequently worked out a programme with the Libyan authorities to train Sierra Leonean revolutionaries to overthrow the All Peoples’ Party (APC) regime. About 25 Sierra Leoneans participated in such training inLibya between 1987 and 1989.11 In 1986 some of the students inGhana travelled toConakry to meet with members of PANAFU fromSierra Leone. It was resolved thereafter that four members of PANAFU would be sent fromSierra Leone for training inLibya. They travelled toGhana where they stayed with Alie Kabbah and his colleagues in their hostel for a week before proceeding toLibya. They were joined by three others who had been based inGhana. All of these Sierra Leonean dissidents travelled toLibya without proper travel documents3 This suggests that the Ghanaian authorities were aware of their presence and movement. The government however declined to comment on the issue on an invitation by the Commission. 13. The training inLibyawas mainly premised on ideology. It commenced in around August 1987 and ended in January 1988. Sierra Leoneans who subsequently travelled toLibya received not only ideological training, but also military training. In 1988, another group of Sierra Leoneans was sent toLibyafor training.

…

46. The RUF was thrown into disarray but it was not annihilated. In order to continue its campaign inSierra Leone, the RUF fell back on external support.Libya, which had provided training for Sankoh and other Sierra Leoneans, continued to give support to the RUF. In a letter to Brother Mohamed Talibi, the Ambassador of the Libyan Arab Peoples Jamahiriya inAccra,Ghana, dated 26 June 1996, Sankoh wrote: “I want to thank you and the other brothers at home again for the half million United States Dollars (500,000USD) which I received through you for the purchase of needed materials to pursue the military mission”. 47. In the same letter, Sankoh went on to make a further request for $(US) 1 million to “purchase twice the listed materials for effective and smooth operation’’.

…

Libya: bridging the gap to Peace Talks in 1996

51. The Commission heard that Colonel Ghaddafi admitted supporting the RUF when he was confronted on the issue by Julius Maada Bio, the second Chairman of the NPRC, in 1996. Moreover Ghaddafi provided Bio with vital information and direction as to how to get the RUF to the table for peace talks. Ghaddafi’s counsel led – directly or indirectly – to the first peace talks between the Government of Sierra Leone and the RUF, which took place inAbidjan in 1996.Libya, which sent delegates to the peace talks, promised the withdrawal of its support to the RUF.70 The opening of those discussions was partly facilitated by the Special Representative of the Secretary-General of the UN toSierra Leone, Mr. Berhanu Dinka. Following the general elections of February and March 1996, the talks that had begun between the RUF and the NPRC Government of Sierra Leone under Bio were taken up by the newly elected SLPP Government of President Kabbah.

…

82.Liberia’s involvement in the conflict was part of a wider network of outside support for the RUF, which also involvedBurkina Faso andLibya. However, there is no evidence before the Commission thatLibya andBurkina Faso sharedLiberia’s interest in the diamond resources ofSierra Leone. AlthoughLibya had promised to withdraw its support for the RUF there are suggestions that following the coup of 1997, Libyan support for the RUF and its allies continued. Arms and ammunitions were flown from Libya via Burkina Faso and Liberia to the RUF.85 In a statement given to the Sierra Leone Police, Yair Gal (aka Yair Galklein), an Israeli “businessman”, testified that while travelling from Burkina Faso to Monrovia in December 1998, he witnessed the loading of rifles into an Air Burkina plane. The plane flew intoMonrovia. Upon arrival the rifles were loaded into a Jeep, and driven to the border withSierra Leone. 83. In December 1998 two Ukrainian planes loaded with arms and ammunition fromLibya flew intoMonrovia at midnight. The arms and ammunitions were then loaded into four trailer trucks belonging to Simon Rosenbloom, another Israeli. Three of the trucks went to Lofa country from where the arms and ammunitions were transported to the RUF base in Kono.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.